NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0043-07T1
APPROVED FOR PUBLICATION
June 19, 2008
Plaintiff-Appellant, APPELLATE DIVISION
BOROUGH OF HARVEY CEDARS,
BOARD OF COMMISSIONERS OF THE
BOROUGH OF HARVEY CEDARS, and
JOHN GERKENS, In His Official
Argued May 19, 2008 Decided June 19, 2008
Before Judges S.L. Reisner, Gilroy and Baxter.
On appeal from the Superior Court of New Jersey,
Law Division, Ocean County, L-3222-06.
Arthur Stein argued the cause for appellant (Stein
& Supsie, attorneys; Mr. Stein, of counsel and on
the brief; Angela M. Velnich, on the brief).
Robert L. Cerefice argued the cause for respondents (Dowell
& Wintrode, attorneys; Mr. Cerefice, on the brief).
The opinion of the court was delivered by
S.L. REISNER, J.A.D.
Plaintiff Donald McGovern appeals from a July 20, 2007
order of the Law Division dismissing his complaint in lieu of
prerogative writs against defendants Borough of Harvey Cedars,
the Borough's Board of Commissioners, and its Zoning Officer
John Gerkens. We affirm, concluding that a municipal ordinance
banning construction close to the water's edge on Long Beach
Island is constitutional and is not preempted by the Coastal
Area Facilities Review Act (CAFRA), N.J.S.A. 13:19-1 to -21.
These are the most pertinent facts. Following a disastrous
storm in 1962 which devastated Long Beach Island, the Borough of
Harvey Cedars adopted an ordinance (ordinance 10-2.2 or the
building line ordinance) precluding any construction east of a
defined geographic line adjacent to the ocean-side perimeter of
the town. Borough of Harvey Cedars Ordinances, Chapter 10-2.2,
Waterfront Regulations.1 See Spiegle v. Beach Haven, 46 N.J. 479
Ordinance 10-2.2 limits construction in a "beach dune area" to
"protective works undertaken by the borough" as well as access,
sand fences and bulkheads. "Beach dune area" is defined under
ordinance 10-1.2 as
the district set off by this chapter to
include the dunes, beaches, strand,
backshore and foreshore, and the areas
where, according to normal beach profile,
the same would or should exist. The beach-
dune area, as defined herein, has been
established by . . . [the] Borough
Engineers, and constitutes all that area
(1966)(Spiegle I); Spiegle v. Beach Haven, 116 N.J. Super. 148,
154-55 (App. Div. 1971)(Spiegle II). The ordinance, which was
adopted by virtually all of the other towns on Long Beach Island
as well, was intended "to protect the health and safety of
residents, as well as the protection of property."2 By its
terms, the ordinance was to be enforced by the Borough's
building inspector. Waterfront Regulations § 10-6.2. In 1973,
the Legislature adopted CAFRA, which was also aimed at
protecting the State's shore area, including the dunes. See
Bubis v. Kassin, 184 N.J. 612, 629-30 (2005).
Decades later, in 2003, plaintiff sought to construct a
ten-by-sixty foot lap pool between his oceanfront house and the
ocean in Harvey Cedars, but he was unable to get permission due
to the building line ordinance.3 In pursuit of his goal,
lying eastwardly of the building line
[subsequently defined as the line designated
on a 1965 map prepared by the borough
engineer,] and as designated on any future
revision thereof. . . .
At oral argument, both counsel agreed that the building line
ordinance is not unique to Harvey Cedars but rather has been
adopted by virtually every municipality on Long Beach Island.
According to counsel's undisputed representations, the one
exception is a town at the tip of the island, Barnegat Light,
that purchased the property closest to the ocean for public use.
As evinced by the lawful presence of a house on plaintiff's
land, the ordinance has not regulated plaintiff's property into
inutility, as his counsel candidly conceded.
plaintiff went to the Borough's zoning office to obtain the
necessary municipal zoning permit. As described in plaintiff's
July 25, 2004 letter to the Board of Commissioners, the Zoning
advised me that this project was problematic
because the entire pool would be East of the
building line, even though there is
sufficient room for all town swimming pool
requirements to be met. They also informed
me that I would need a CAFRA Approval from
the State; so I decided to pursue this
Although he was already on notice that the pool project
would violate the building line ordinance, plaintiff nonetheless
applied for and, on May 24, 2004, obtained a CAFRA permit for
the construction of the pool.4 Paragraph nine of the permit
specified that it did not relieve plaintiff of the obligation to
comply with local regulations. Plaintiff returned to the
Borough's zoning office with his CAFRA permit to apply for a
municipal zoning permit for the pool. He was directed to
contact the Board of Commissioners, as the matter remained
outside of the zoning office's jurisdiction.
Plaintiff attended the June 17, 2004 meeting of the Zoning
Board of Adjustment and raised the issue of his obtaining a
According to zoning officer Gerkens' March 5, 2007 answers to
interrogatories, plaintiff first showed him a plot plan with no
building line delineated on it; thus he did not know at first
that the plan violated the building line ordinance and, in that
context, told plaintiff that he needed a CAFRA permit.
municipal zoning permit for the construction of the pool. The
Zoning Board Solicitor indicated that the Board lacked the
authority to answer plaintiff's inquiry as dune protection was
under the municipality's police powers.
On July 25, 2004, plaintiff wrote to the Board of
Commissioners requesting approval to proceed with the pool
project. Consistent with what plaintiff had been told when he
first approached the Zoning Board, the municipal attorney wrote
back to plaintiff advising him that no construction was
permitted beyond the "building line" and directing plaintiff's
attention to ordinance 10-2.2. Counsel added "that there is no
provision for a variance, deviation or waiver." Municipal
counsel also advised plaintiff that the building inspector was
responsible for enforcing the ordinance. Plaintiff responded
that the proposed pool would not infringe upon the beach dune
area protected by the ordinance. On August 11, 2005,
plaintiff's counsel wrote to the Board of Commissioners raising
the issue of preemption by CAFRA.
Plaintiff's counsel sent a letter dated November 21, 2005,
to the zoning office asserting that the proposed pool complied
with all zoning requirements and that the only open issue was
the applicability of ordinance 10-2.2. In other words,
plaintiff apparently sought a zoning permit in order to complete
his preparations for a lawsuit challenging the ordinance, by
establishing that the pool otherwise complied with local zoning.
The zoning office responded that plaintiff would be required to
complete an application for a zoning permit and pay the $75
application fee in order for the office to perform an
evaluation. Thereafter, on March 8, 2006, plaintiff filed his
application for a zoning permit and paid the fee.
On March 15, 2006, Zoning Officer Gerkens denied
plaintiff's application for a zoning permit, because it would
violate the building line ordinance as well as a setback portion
of the zoning ordinance. Gerkens explained that the proposed
construction was prohibited as it would occur "eastward of the
'building line'" and that "the pool equipment [is] not permitted
within the yard setbacks." In a June 16, 2006 letter, Gerkens
further explained that the permit was denied based upon "two
areas of non-compliance with our [zoning] ordinances of Chapter
Plaintiff corrected the Chapter 13 setback violations and
again requested issuance of a zoning permit. On July 18, 2006,
the municipal attorney sent plaintiff's counsel another letter
on behalf of the governing body stating that the permit still
could not be issued because the proposed pool was in violation
of the building line ordinance. In response to plaintiff's
request for a formal grant or denial of his zoning permit
application, the municipal attorney wrote to him once again on
July 27, 2006, stating that although plaintiff met all zoning
requirements, the project was not eligible for a zoning permit
"because the swimming pool would be located east of the building
line." By letter dated August 29, 2006, municipal counsel
further indicated that the zoning board had no jurisdiction with
respect to the ordinance and there was "no basis in the . . .
[o]rdinance for an appeal to the governing body."
In response, plaintiff filed an action in lieu of
prerogative writs against the Borough and its officials. In
denying plaintiff's request for relief, Judge Oles held that
that CAFRA did not pre-empt ordinance 10-2.2. Noting that the
ordinance was enacted in response to the devastating storm of
1962, the judge found that "there is no question" that it
"protects and promotes health, safety and the general welfare of
the community." He found that the ordinance did "not conflict
with the purposes and the operations of [CAFRA]," but rather
Judge Oles found that CAFRA was not "intended, expressly or
impliedly, to be exclusive in the field." He observed that
CAFRA protects all dunes located along New Jersey's coast,
whereas ordinance 10-2.2 is concerned with the protection of
life and property within the municipality's borders. He
reasoned that the ordinance does not "encroach upon the need for
uniformity with respect to dune protection, rather the exercise
of the police powers recognizes the unique factual status of
each municipality in relationship to the need for protection."
The judge added that the ordinance was not an obstacle to the
accomplishment of CAFRA's goals. Finally, he concluded that the
ordinance did not constitute an unconstitutional taking of
plaintiff's property without just compensation, since plaintiff
was not "denied an economic viable use of the property."
On this appeal, plaintiff contends that he was improperly
denied a zoning permit, that the ordinance is unconstitutional
because it violates substantive due process, and that the
ordinance is preempted by CAFRA.
Having reviewed the record, we conclude that plaintiff's
arguments with respect to an alleged improper denial of a zoning
permit are without merit. Plaintiff was told from the beginning
that his proposed pool project violated the building line
ordinance and that the Zoning Board did not have jurisdiction
over enforcement of that ordinance. Since plaintiff for
whatever reason repeatedly eschewed the correct procedure,
namely to raise the ordinance issue with the local building
inspector, his efforts to obtain approval despite the ordinance
were properly rejected by the municipal governing body through
its municipal counsel.5
We also find no merit in plaintiff's remaining arguments.
Plaintiff contends that the ordinance is arbitrary and violates
substantive due process. His central contentions are that the
ordinance's sole purpose is to protect the dunes, but the
ordinance does not rationally further that goal because the dune
line shifts, while the ordinance mandates a fixed line beyond
which building is prohibited.6 Plaintiff's related contention is
that the ordinance is preempted by CAFRA, which mandates a much
more individualized inquiry into whether a particular proposed
building will interfere with the dunes.
We begin with plaintiff's due process argument. A
municipal ordinance is "accorded a presumption of validity which
can only be overcome by an affirmative showing that the
While plaintiff did apply for a building permit for the pool,
nothing in the record indicates that he alerted the building
inspector to the issue of whether the pool's location would
violate the building line ordinance. We find no error in the
Zoning Board declining to issue a zoning permit for such a
facially illegal project. By analogy, if plaintiff had sought a
zoning permit to construct a five-story apartment building with
no windows, or with no fire escape or other second means of
egress, the Board could properly have declined to issue a permit
until and unless plaintiff cleared his plans with the local
At oral argument, plaintiff's counsel agreed that if the
purpose of the ordinance was to protect property by keeping
buildings away from the water's edge, the ordinance would be
ordinance is arbitrary or unreasonable." Taxpayers Ass'n of
Weymouth Twp. v. Weymouth Twp., 80 N.J. 6, 20 (1976), cert.
denied, 430 U.S. 977, 97 S. Ct. 1672, 52 L. Ed. 2d 373 (1977).
"Enabling statutes delegating to municipalities the power to
enact ordinances to promote the health, safety, and general
welfare in the context of land use regulation should be given
'an expansive interpretation.'" In the Matter of Egg Harbor
Assocs., 94 N.J. 358, 366-67 (1983).
The building line ordinance sprang from disasters unique to
Long Beach Island. The devastation was described in Spiegle II,
supra, which concerned a challenge to the ordinance as adopted
in Beach Haven, where the 1962 storm temporarily cut the island
[M]ajor storms of hurricane intensity struck
Beach Haven in 1944 and 1962. . . .
Several homes nearby and to the west of the
Spiegle properties were completely destroyed
during the 1962 storm during which the ocean
and bay waters merged at high tide over the
southern portion of the borough.
[116 N.J. Super. at 162.]
The history of the building line ordinance, which is common to
virtually all towns on the island, reveals its purpose to
protect property in addition to the dunes. Its genesis was
described in detail in Spiegle II:
By way of background information, the
building line was established by the 1964
map. It generally paralleled the dune area
which ran parallel to the shore line.
William H. Taylor, a consulting civil
engineer whose firm was the borough engineer
until 1966, said the line was fixed in such
a way that he would not consider it safe to
build east of it. Homes located inland
could be endangered by the destruction of
beachfront houses if, for example, debris
from the demolished home was swept inland by
the ocean waters. Moreover, if the sewer
lines connected to a home on the beach were
to be ruptured by a storm, the municipal
sewer system could become clogged with sand.
The validity of this exact ordinance was challenged in
Spiegle I and was upheld. In Spiegle I, the plaintiffs, owners
of beach front land on which the ordinance prevented them from
building, conceded that the ordinance was rationally related to
protecting public safety. 46 N.J. at 491. However, they
contended that the ordinance constituted a taking of their
property without just compensation. In rejecting this argument,
the Court recognized the purpose of the ordinance to protect
Plaintiffs failed to adduce proof of
any economic use to which the property could
be put. The Borough, on the other hand,
adduced unrebutted proof that it would be
unsafe to construct houses oceanward of the
building line (apparently the only use to
which lands similarly located in defendant
municipality have been put), because of the
possibility that they would be destroyed
during a severe storm -- a result which
occurred during the storm of March 1962.
Additionally, defendant submitted proof that
there was great peril to life and health
arising through the likely destruction of
streets, sewer, water and gas mains, and
electric power lines in the proscribed area
in an ordinary storm. The gist of this
testimony was that such regulation
prescribed only such conduct as good
husbandry would dictate that plaintiffs
should themselves impose on the use of their
own lands. Consequently, we find that
plaintiffs did not sustain the burden of
proving that the ordinance resulted in a
taking of any beneficial economic use of
[Id. at 492.]
The Court also concluded that the ordinance was not void for
vagueness in describing the building line:
The very nature of the subject matter of the
definitions prevents more specific language
than that employed. The shifting and
unstable high water line and Dune Area are
not susceptible of more particular
description. The definitions are
sufficiently clear and definite to furnish
adequate information as to what was intended
and to act as a restraint against arbitrary
[Id. at 493.]
Raising the question not directly answered in Spiegle,
plaintiff urges that the ordinance violates substantive due
process. Under both the United States Constitution and New
Jersey Constitution, governmental regulation "is invalid on
substantive due process grounds if it 'seeks to promote [a]
state interest by impermissible means.'" Caviglia v. Royal
Tours of Am., 178 N.J. 460, 472 (2004). Governmental regulation
generally does not run afoul of federal
substantive due process protections if [it]
"reasonably relates to a legitimate
legislative purpose and is not arbitrary or
discriminatory." If the statute is founded
on some conceivable rational basis to
promote a public purpose, it will survive
[Ibid. (citations omitted).]
To protect the public health, safety and general welfare,
the "interests of one property owner must be subjected to some
degree to the welfare of the general public." Spiegle II,
supra, 116 N.J. Super. at 166.7 However, the government
regulation "must be reasonably designed to resolve the problem
without imposing unnecessary and excessive restrictions on the
use of private property." Berger v. State, 71 N.J. 206, 223-24
(1976). The means selected must have "a real and substantial
relationship to a permissible legislative purpose." Caviglia,
supra, 178 N.J. at 473 (quoting Taxpayer's Ass'n v. Weymouth
Twp., 80 N.J. 6, 44 (1976), cert. denied, 430 U.S. 977, 97 S.
Ct. 1672, 52 L. Ed. 2d 373 (1977)). In light of the island's
history of devastating storm damage, we cannot say that an
ordinance prohibiting building close to the water's edge in
order to protect the dunes and to prevent property damage from
storms, is irrational, arbitrary or lacking "a real and
Spiegle II applied the holding of Spiegle I in addressing a
further takings claim raised by the plaintiff.
substantial relationship" to the purpose of protecting the
public health, safety and welfare. Ibid.; N.J.S.A. 40:48-2.
We turn next to the issue of preemption. In determining
whether a State statute preempts a municipal ordinance, we apply
the test articulated in Overlook Terrace Management v. Rent
Control Board, 71 N.J. 451 (1976):
[p]reemption is a judicially created
principle based on the proposition that a
municipality, which is an agent of the
State, cannot act contrary to the State.
Preemption analysis calls for the answer
initially to whether the field or subject
matter in which the ordinance operates,
including its effects, is the same as that
in which the State has acted. If not, then
preemption is clearly inapplicable. An
affirmative answer calls for a further
search for it is not enough that the
Legislature has legislated upon the subject.
Pertinent questions for consideration
in determining applicability of preemption
1. Does the ordinance conflict with state
law, either because of conflicting policies
or operational effect (that is, does the
ordinance forbid what the Legislature has
permitted or does the ordinance permit what
the Legislature has forbidden)?
2. Was the state law intended, expressly
or impliedly, to be exclusive in the field?
3. Does the subject matter reflect a need
4. Is the state scheme so pervasive or
comprehensive that it precludes coexistence
of a municipal regulation?
5. Does the ordinance stand as an obstacle
to the accomplishment and execution of the
full purpose and objectives of the
[Id. at 461-62 (internal citations and
Ordinarily, pursuant to N.J.S.A. 40:48-2, a municipality
may exercise its police powers to "legislate for the . . .
protection of its residents and property owners," and such
regulation will not be preempted absent a clear legislative
intention.8 S. Brunswick Twp. v. Covino, 142 N.J. Super. 493,
498 (App. Div. 1976).
In order for preemption to apply, the
legislative intent to occupy the field must
appear clearly. "The ultimate question is
whether, upon a survey of all the interests
involved in the subject, it can be said with
confidence that the Legislature intended to
immobilize the municipalities from dealing
with local aspects otherwise within their
power to act."
N.J.S.A. 40:48-2 provides:
[a]ny municipality may make, amend, repeal
and enforce . . . ordinances, regulations,
rules and by-laws not contrary to the laws
of this state or of the United States, as it
may deem necessary and proper for the good
government, order and protection of persons
and property, and for the preservation of
the public health, safety and welfare of the
municipality and its inhabitants, and as may
be necessary to carry into effect the powers
and duties conferred and imposed by this
subtitle, or by any law.
[Ibid. (citations omitted).]
Applying this precedent, we agree with the trial judge that
CAFRA does not preempt the building line ordinance. CAFRA was
intended to provide comprehensive protection for the State's
"coastal area" without unduly interfering with the "overall
economic position of the inhabitants of that area." N.J.S.A.
13:19-2. In other words, the statute was a compromise between
the State's interest in preserving its coastal eco-system and
the need to allow environmentally appropriate development for
the economic benefit of those living in the coastal areas. See
Bubis, supra, 184 N.J. at 629.
CAFRA's history indicates that the Legislature did not
intend to preempt all local regulation of dunes or coastal
development. In fact, legislative comments to the 1993 CAFRA
amendments specifically recognize that "[i]f a municipality has
adopted a dune ordinance as stringent as State law and rules and
regulations adopted pursuant thereto, as determined by the DEP
[Department of Environmental Protection], then review pursuant
to [CAFRA] would not be required for developments on dunes in
that municipality." Assembly Environmental Committee Statement
to Senate, No. 147 - L. 1993, c. 190. See also N.J.A.C. 7:7-41
(DEP regulation providing that "[t]he provisions of CAFRA . . .
are supplemental to other laws, including the Municipal Land Use
Law"); Anfuso v. Seeley, 243 N.J. Super. 349, 365 (App. Div.
Accordingly, our courts have recognized that CAFRA does not
preempt municipal zoning or regulations with respect to dunes.
[A]s a general matter, CAFRA "regulations do
not preempt local zoning authority."
Rather, CAFRA "embod[ies] carefully
considered policies for the use of coastal
resources that local officials must take
into account in zoning shoreline property
within their communities."
[Bubis v. Kassin, supra, 184 N.J. at 630
(quoting Lusardi v. Curtis Point Prop.
Owners Ass'n, 86 N.J. 217, 229 (1981)).]
See also Toms River Affiliates v. N.J. Dep't of Environ. Prot.,
140 N.J. Super. 135, 146 (App. Div.), certif. denied, 71 N.J.
In Bubis, for example, the Court found that a municipal
ordinance regulating the height of fences in the town's beach
area was not preempted by CAFRA.
The legislative purpose of CAFRA is to
"preserve the most ecologically sensitive
and fragile area from inappropriate
development and provide adequate
environmental safeguards for the
construction of any developments in the
coastal area" in a manner that is "in the
best long-term, social, economic, aesthetic
and recreational interests of all people of
the State." N.J.S.A. 13:19-2. The
ordinance operates on a smaller scale and
simply sets forth a general objective for
the beach zone in Loch Arbour: "to preserve
the existing natural beach area and dunes
which are present in the Village for their
unique beauty and recreational assets."
Thus, neither the purpose nor the specific
provision of the ordinance at issue usurps
the DEP's authority over dunes.
[Id. at 629-30.]
While Bubis did not address a building line ordinance, in citing
to Spiegle II, Bubis recognized the purpose of the "local dune
ordinance" to "prevent increased westward encroachment by the
sea." Bubis, supra, 184 N.J. at 623.
Plaintiff's reliance on Tumino v. Long Beach Twp., 319 N.J.
Super. 514 (App. Div.), certif. denied, 161 N.J. 332 (1999), is
misplaced. There, we found a conflict between the Waterfront
Development Act, N.J.S.A. 12:5-1 to -11, and a municipal
regulation concerning docks. We concluded that the Legislature
had manifested an intention to occupy the field of regulating
dock construction. Id. at 525-28. In that respect, Tumino is
not on point, because our courts have already recognized that
CAFRA does not preempt local regulation. See Bubis, supra.
Moreover, in Tumino, the municipality sought to regulate the
details of construction of local docks, in a manner that
actually conflicted with State regulation of dock construction.
Significantly, we also noted that
the [municipal dock committee] was not
concerned with whether a dock should be
constructed in this zone but whether the
dock would pose a hazard to navigation or
impede access by neighbors to their
waterfront facilities. The latter issues
are within the exclusive control of the DEP.
[319 N.J. Super. at 527.]
By contrast, in this case, the municipality is not seeking to
regulate the construction of dunes in a manner inconsistent with
CAFRA, but rather is prohibiting construction of buildings and
other structures close to the water's edge. The ordinance thus
protects both the dunes and the buildings. CAFRA does not
prevent municipalities from providing more protection to the
dunes than CAFRA would allow, and plaintiff has not pointed out
any respect in which the municipal ordinance permits activity
that CAFRA prohibits.
Like the fence ordinance in Bubis, supra, 184 N.J. at 629,
the building line ordinance "operates on a smaller scale" than
CAFRA, seeking to address a local issue in light of Long Beach
Island's particular vulnerability to storm damage. We find no
To the extent not specifically addressed here, plaintiff's
remaining arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).